IMPORTANT POINTS:
" Rectification deed does not create, transfer, limit, extend, extinguish or record any right-Wrong description which will not create, transfer or record any fresh right can be rectified through a rectification deed-Such deed is possible only to correct an error or mistake-A mistake was crept in regard to the description of the property in the Will- None has a case that there exist any such property as described in the Will to the testator
" Every person will have to be driven to the Civil Court for obtaining relief even if there is no dispute among the beneficiaries or legal heirs. Such a course is not under contemplation of law. If there is unanimity among the legal heirs who otherwise would have been inherited the property, they could very well justify the intention of the testator and there is no impediment under law in executing a rectification deed by such persons so as to correct the descriptions in a registered Will.

1. In what manner the wrong descriptions in a 'Will' would have an impact upon the legatee claiming the property covered by the Will is the sole question to be considered in this writ petition.

2. The petitioners are the children of late T.K. Krishnan and late Padmini Amma. Late T.K. Krishnan had executed a registered Will bequeathing his property to petitioners 1 to 3. In the Will, there is a mistake in regard to description of the property. That lead to a thought for the petitioners to partition the property among the legal heirs as per the wish of the testator. Accordingly, they executed a partition deed. The Sub Registrar refused to register the partition deed stating that after the death of the testator, mutation of the property was effected and the document presented for registration can be treated only as a conveyance deed. It is challenging the decision of the Sub Registrar, the petitioners approached this Court.

3. The erroneous description of subject in a 'Will' is attempted to be resolved by executing a partition deed by the legal heirs. If the bequest had already given effect, there may not be any right available for the legal heirs of the testator to enter into a partition deed. The question, therefore, is whether the bequest had taken effect or not.

4. Section 78 of the Indian Succession Act, 1925 reads as follows:

“78. Rejection of erroneous particulars in description of subject.- If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the Will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect”.

Section 78 states that erroneous description of some part of the property can be rejected to give effect to the bequest. All the legal heirs of late T.K. Krishnan have joined together in this writ petition and they have no case that any such property as such exists to fit into the description of the Will. There is no difficulty for them to identify the property as such and there is no dispute among the legal heirs. If extrinsic circumstances are of such nature which would enable one to sufficiently identify the subject, there is no difficulty to hold that bequest has taken effect. In such circumstances, the wrong description will not make the bequest invalid. The bequest, therefore, is valid. Then the only question remains is in what manner such bequest can be given effect.

5. Learned counsel for the petitioners submits that the petitioners may be permitted to execute a rectification deed.

6. Learned Government Pleader submits that such rectification is not possible insofar as a Will is concerned.

7. The law does not provide any platform or remedy for such issues. Section 26 of the Specific Relief Act, 1963 only refers for rectification of instruments if it happened on account of fraud or mutual mistake. It does not speak about the mistake committed by the testator in a Will. This Court is only concerned about the manner in which such rectification has to be done. If the learned Government Pleader's argument is accepted, every person will have to be driven to the Civil Court for obtaining relief even if there is no dispute among the beneficiaries or legal heirs. Such a course is not under contemplation of law. If there is unanimity among the legal heirs who otherwise would have been inherited the property, they could very well justify the intention of the testator and there is no impediment under law in executing a rectification deed by such persons so as to correct the descriptions in a registered Will. In fact, as far as a rectification is concerned, the petitioners being the legal heirs of the testator, they have every right to correct such wrong description in the Will. However, this is only possible if there is unanimity among the legal heirs. If there is any dispute in regard to such description, it can be resolved only through the Civil Court. When there i